People v. Fleming

194 N.W. 714, 224 Mich. 199, 1923 Mich. LEXIS 911

• Court: Michigan Supreme Court
• Decided: July 20, 1923
• Docket: Docket No. 146
• Status: Published

Opinions

Bird, J.

Defendant was convicted of stealing a slipper from a retail store in Shelby. The people’s proofs showed that defendant took the slipper when no one was waiting upon her, placed the same in her pocket and went to a rest room in another part of the store. One of the proprietors followed her and demanded admission. The door was unlocked and the slipper surrendered upon his demand. Defendant’s version of the incident was that she took the slipper to the rest room to try it on; that she had on darned stockings and did not care to expose her foot out in the store,, and that she had no intent of stealing it. Upon the issue of felonious intent the jury found against her.

1. For the purpose of characterizing her intent the prosecutor offered proof of other instances of shoplifting by her in the stores at Shelby. This testimony, was objected to and it raises the principal question in the case. Defendant’s counsel argue that it was giving proof of other independent offenses to convict her of the one charged. Of course, the question is whether the admission of this proof came within the exception to the general rule that the offense charged may not be proved by evidence of the commission of other offenses. The exception to the general rule is well stated in People v. Seaman, 107 Mich. 348 (61 Am. St. Rep. 326):

“Where a felonious intent is an essential ingredient of the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain.”

In 1 Wharton’s Criminal Law (6th Ed.), § 649, it is said:

“Where the scienter or quo animo is requisite to, and constitutes a necessary and essential part of, the crime for which the person is charged, and proof of such guilty knowledge or malicious intention is indispensable to establish his guilt in regard to the transaction in question testimony of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent is competent, notwithstanding they may constitute in law a distinct crime.”

■ In 3 Greenleaf on Evidence (16th Ed.), § 15, the same rule is discussed:

“In the proof of intention, it is not always necessary that the evidence should apply directly to.the particular act, with the commission of which the party is charged; for the unlawful intent in the particular case may well be inferred from a similar intent, proved to have existed in other transactions done before or after that time.”

And this exception to the general rule has been applied in prosecutions for larceny. See note in 62 L. R. A. 231. This note cites numerous larceny cases where the exception to the general rule has been applied.

If the people’s contention were true, defendant was guilty of larceny. If defendant’s version were true, she was innocent of the offense charged. There were no material disagreements on the facts. The issue was purely one of felonious intent. For the purpose of characterizing that intent the prosecutor showed by one witness that on the same day defendant went into another store and took some candy and placed it in her bag and left the store without paying for it, or speaking about it. Other instances of like character were testified to.

Had defendant denied taking or having the slipper, the testimony would have been incompetent, because the larceny charged could not be established by proof of another larceny. But when defendant admits doing with the slipper what the prosecution charges, and her admitted acts are subject to two constructions, one an innocent and the other a guilty one, then the only issue is one of felonious intent and this intent may be characterized by other similar instances. See People v. Giddings, 159 Mich. 523 (18 Ann. Cas. 844); People v. MacGregor, 178 Mich. 468; People v. Wakely, 62 Mich. 303; Rapalje on Larceny, § 200; 1 Wigmore on Evidence, § 346; Weyman v. People, 6 Thomp. & C. (N. Y.) 696. In the last case cited the defendant was charged with grand larceny. He ordered certain jewelry of another jeweler on the statement that it was for the purpose of enabling one of his customers to inspect it. For the purpose of showing defendant’s intent, the prosecutor was permitted to show that defendant had similar transactions with two other firms and appropriated the goods to his own use. Complaint was made of the admission of this testimony, but the appellate court held the testimony admissible.

2. The point is made that no offense known to the law is charged in the information. The information appears to be based on the following statute:

“Every person who shall break and enter with intent to commit any felony or larceny therein, any dwelling-house, office, store, shop, warehouse, mill, factory, boat, vessel, depot, freight-house, meetinghouse, church, court house, college, academy, or other building or structure, used or kept for private or public use, or any person who shall, without breaking, steal in any dwelling-house, office, store, shop, warehouse, mill, factory, boat, vessel, depot, freight-house, meeting-house, church, court house, college, academy, or other building or structure used or kept for private or public use, shall be punished by imprisonment in the State prison not more than five years, or by a fine not exceeding five hundred dollars.” Act No. 323, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 15295).

We are not impressed that there is any ambiguity in the statute. It covers instances of breaking and entering the places mentioned in the act, whether in the nighttime or in the daytime. It also covers stealing (without breaking) from the enumerated places, whether in the nighttime or in the daytime. It differs from the section which it superseded (3 Comp. Laws 1915, § 15295), by making the act of breaking and entering apply to the entire 24 hours, and by making larceny an offense, whether done in the daytime or in the nighttime. The old statute did not cover a case of breaking and entering in the daytime, nor did it cover cases of larceny without breaking in the night time. The fact that the information alleged the act took place in the daytime is of no importance since the statute makes the act larceny whether committed in the day or night. The information was more specific than it need to have been. We think the offense was sufficiently charged in the information. It will be unnecessary to consider the other questions raised, as we think they are without merit.

.The judgment of conviction is affirmed.

Wiest, C. J., and McDonald and Steere, JJ., concurred with Bird, J.